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This chapter considers how a liminal lens help inform contemporary discussions surrounding embryos in vitro and beyond using three case studies: 1) the 14-day rule, 2) in vitro gametogenesis, and 3) ectogenesis. The first case study is important as it is the principal manifestation of law’s attempt to reflect ‘special status’ on the embryo, and because it is also an example of legal attempts to deal with embryonic processes. This example is used to examine what the context-based approach developed in this book could bring to contemporary debate about the nature of such a rule, as well as its retention, reduction, or extinction. The second example enables us to consider what the analysis offered in this book says about these relatively new technologies in relation to their regulation, and the key biological and legal thresholds involved. The final case study focuses specifically on partial ectogenesis, a technology which not only introduces new thresholds, but leads us to question our existing understanding of meaningful legal thresholds, most notably birth as the moment in which the foetus/baby attains personhood. By these means, the analysis engages with the entire trajectory of embryonic development as this is driven by scientific possibilities, both current and near future.
This chapter draws parallels to the gothic trope that surrounded discussions on embryos in vitro in the 1980s as a frame of analysis that has grown in counter-response to law’s tendency to place entities either within the category of a ‘liberal, individual self,’ or outwith it (rarely in between). To explain, the gothic self is characterised by disorder, chaos, and dependency. It cannot be subsumed under the traditional ‘self’ that the law presupposes of its subjects. Further, within ‘the gothic’ lies the key concept of ‘monstrosity’, at the margins of what we deem to be human: ‘we stake out the boundaries of our humanity by delineating the boundaries of the monstrous’. While the gothic trope does not explicitly centre around ‘the in between,’ it is argued that we should see gothic entities as such, because of their common placement - legally, and sometimes socially - on the boundary between liberal, individualised human, and something akin to a science-fiction-esque ‘monster.’ The controversy that causes rhetorical parallels between new research and monstrous beings and mad scientists to be drawn is a major contributor to policy-makers reluctance to revisit the legal status of embryos in vitro.
In this introduction, McMillan introduces key concepts and definition discussed throughout the book, including: liminality, ‘the embryo’, process, and ‘legal status’. The regulation of emerging technologies may be described as the governance of processes in persistent flux, and in some cases, it is the regulation of what we do not yet know or fully understand. Reconciling process with progress, therefore, has not been easy. Nonetheless, the regulation of the embryo in vitro, and all the practices that law currently allows are, in essence, regulating for processes of change. Considering that it has been over 30 years since the 1990 Act was passed in its original form, is it time to legally reconceive ‘the embryo’? In this book McMillan calls for, and considers, the basis for a more coherent and robust intellectual defence of the ways in which we justify the different manners in which law treats different types of embryos created purposively towards different ends. The main questions that this analysis seeks to answer are the following: Overall, does law reflect and embody processual regulation, if so, what does this look like? And if not, what form could it take if reform were thought to be desirable?
The analysis in this chapter emphasises that there can only ever be two places that law, in its present state, can lead embryos to: a woman’s womb, or its own destruction and disposal. Ultimately, this chapter has been developed with a view to answering: how might we use a liminal lens to bring lessons from ‘the gothic’, from conceptualisation to realisation? This chapter addresses the latter in four sections. First, it briefly takes stock of the analysis and ‘lessons’ highlighted by the book so far, before going on to synthesise this analysis, and in doing so, considering the ways in which law can lead embryos out of liminality. Second, it focuses on the roles of persons in embryonic processes in vitro; and Third, it draws out the contours of a context-based approach, including what the approach is not; Finally, it, discusses the potential effects of a context-based approach for the issues (i.e. the contours of the ‘legal gap’) discussed in Part One of this book. It suggests that a context-based approach has the potential to justify affording embryos in vitro different ‘statuses’ depending on the relationally guided and defined pathway on which it is, or onto which it is put.
This analysis traces the history of the 1990 Act (as amended) and summarises the present regulatory framework governing the embryo in vitro with reference to its legal ‘special status’. It briefly summarises some of the key arguments put forward in the Warnock Report relating to the moral and legal status of the embryo in vitro and the enactment of these arguments in law, including subsequent amendments of the framework. The Chapter finds that, like its historical counterparts, embryonic, moral, scientific, and other forms of process were important considerations for the Report, which provided the intellectual basis for the 1990 Act.
We have seen thus far that the intellectual underpinning of the 1990 Act (as amended) - the embryo’s rather vague ‘special status’ - has not changed since the Act’s inception. Moreover, we have seen that any attempts change the intellectual basis of the Act, for example the 2008 Act, have been cautious at best. Thus, as a way of mapping the landscape to date, and also of clearing a path towards novel approaches to regulating the embryo, this chapter undertakes two important tasks: (1) an academic analysis of the caution mentioned above - a fade from discourse - which has only intensified the confusion surrounding the ‘special’ legal status of the embryo; and (2) an exploration of some of the ways in which the unclear nature, source, and extent of the legal status of the embryo could be clarified by exploring two key normative legal tools that are often employed to provide certainty: binding objects within a regulatory space, and drawing boundaries. Ultimately, this chapter posits that the root of the vague nature of the embryo’s ‘special status’ is a prevailing uncertainty regarding how we ought to treat embryos in vitro, because, by its very nature, it does not easily fit into normative social, moral or legal categories.
This chapter chronologically traces past legal engagement with the human embryo, from the 13th century, to the end of the 20th century. It does so with a view to demonstrating that a historical perspective is required to understand that process is a key facet of law-making in this area. Notable from this legal history is the law’s persistent efforts to engage with the embryo’s uncertain, processual nature. We cannot fully understand our present legal position without understanding the social, moral, and legal context from which it was born. By looking at the past ‘legal embryo,’ we can see how the law has reached today’s ‘legal embryo’.
This book, concerned with the regulation of human embryos in vitro, and their use for reproduction and research, has explored the ways in which law does, and can regulate processually. As we have seen, the 1990 Act is static and unchanging with respect to the moral status of ‘the embryo’, yet our societal understandings and perceptions of embryos are not. The 1990 Act is, as we have seen, permanently liminal. A ‘gothic’ framing of embryos and the use of a liminal lens have each revealed a key facet of embryo regulation. All of the practices that law currently allows are regulating for: uncertainty, process, and change. Here, the truism coined by Thomassen that ‘liminality is’ has been explored and unpacked with reference what this means for embryos that are subject to our legal architecture. The reality of liminality still has much to say about the way we regulate in vitro embryos. This book has provided the reader with ways to think about the ways we navigate law, and processes governed by law into, through and out of liminality in ways that bring greater insights into the sensitive enterprise of regulating for uncertainty, when our focus of attention is an entity as fluid and remarkable as the human embryo.